WALLACH, Circuit Judge.
These consolidated individual actions were brought by thirty-seven lakefront property owners seeking just compensation under the Fifth Amendment of the United States Constitution for a partial physical taking of their respective properties by the United States Army Corps of Engineers ("Corps"). The United States Court of Federal Claims dismissed the actions as time-barred. Because the Court of Federal Claims violated this court's mandate in Banks v. United States (Banks
Beginning in the 1830s, the Corps began constructing two major harbor jetties on Lake Michigan near the St. Joseph River. These jetties protrude outward from the mouth of the river into the body of the lake. They were periodically extended until 1903, when they reached their current length. After 1903, major construction on the jetties ceased until 1950, when the Corps began a project to encase the jetties in steel-sheet piling. This project was completed in 1989.
Appellants (also referred to as "Plaintiffs") are landowners along approximately four and one-half miles of the eastern shore of Lake Michigan, south of the jetties. This shoreline is eroding naturally, but Appellants allege the jetties block the flow of sand and sediment from the river and the lakeshore north of their properties. Specifically, they argue that the structures interrupt the natural littoral drift within the lake, leading to increased erosion on their properties, amounting to an unlawful taking under the Fifth Amendment.
The Corps has also been concerned with erosion along the Lake Michigan shoreline. In 1958, the Corps released a "Beach Erosion Control Study" (the "1958 Study") that examined the effects of beach erosion on Berrien County, Michigan, where the St. Joseph jetties are located. This Report documented increased erosion in certain areas as a result of the jetties and recommended that a nourishment program "be initiated at the earliest practicable date." J.A. 5939. This program did not target Appellants' land because the land was then private and ineligible for federal funding. Nonetheless, the project was expected to benefit them by "restoration of normal littoral drift" in the area. J.A. 5959.
In 1968, Congress enacted the "Rivers and Harbors Act," which authorized the Secretary of the Army to "investigate, study, and construct projects for the prevention or mitigation of shore damages attributable to Federal navigation works." River and Harbor Act of 1968, Pub.L. No. 90-483, § 111, 82 Stat. 731, 735 (1968) (codified as amended at 33 U.S.C. § 426i (2012)). Pursuant to this authority, the Corps proposed a plan to mitigate the erosion caused by the jetties by dumping sand into feeder beaches located to the north of Appellants' properties. This endeavor was projected to "provide the quantities of littoral material interrupted by the [jetties] to the shores downdrift." J.A. 5061.
Implemented in 1976, the mitigation plan "involved placing fine sand from the harbor maintenance dredging on the downdrift [southerly] beaches." Banks v. United States (Banks I), 49 Fed.Cl. 806, 818 (2001), rev'd, 314 F.3d 1304 (Fed.Cir.2003) (internal quotation marks and citation omitted). After fifteen years of beach nourishment, the mitigation efforts shifted to using coarser sediment, in the hope it would have a longer retention time than fine sand. Eventually, in 1995, the Corps dumped "barge-loads of large rocks into the lake." Id. at 819.
In relation to these projects, the Corps released a series of reports in 1973, 1996, 1997, and 1999 on the erosive effects of the jetties and the progress of mitigation efforts. There is also an April 20, 1998, newspaper article relating to the erosion.
The 1996 Report concluded that the St. Joseph shoreline was "in a state of recession" and that the erosion that occurs during lakebed downcutting
The 1997 Report observed that some areas were benefitting from nourishment but in other areas the results were "questionable." J.A. 5516. The 1999 Report — made public in 2000 — identified Lake Michigan as a cohesive, rather than sandy, shoreline, and stated that "`[e]rosion of the consolidated layer [underlayer of a cohesive coastline] is generally irreversible.'"
This case began in 1999, when a majority of Appellants filed suit in the Court of Federal Claims against the Government claiming an unconstitutional taking under
On remand, the Court of Federal Claims held separate trials on liability and damages. On June 4, 2007, the case proceeded to the trial on liability. Liability Op., 78 Fed.Cl. 603. The primary issues addressed were: (1) the zone of influence of the jetties and whether Appellants' properties were located within that zone; (2) whether the composition of the lakebed adjacent to the property was sandy or cohesive; and (3) the effectiveness of the beach nourishment mitigation program. Id. at 613-14. The Court of Federal Claims concluded that, contrary to the allegations in Appellants' Complaints, the jetties were impermeable to sand before they were encased in steel. See id. at 636. The court also found that the United States was liable for 30% of erosion between 1950 and 1970, after each owner's acquisition of his or her property. It held that, after 1970, the United States was responsible for 30% of any losses to erosion that had not been effectively mitigated. Id. at 656. In so concluding, the Court of Federal Claims "heard testimony from 22 witnesses and received some 75 exhibits into evidence." Id. at 608.
Following the Liability Opinion, Appellants made additional motions, including a Motion in Limine based on the law-of-the-case doctrine to preclude (1) all evidence that the erosion suffered by Appellants was not permanent and irreversible; and (2) evidence relating to the composition of the nearshore lakebed adjacent to Appellants' properties. J.A. 1859. The Court of Federal Claims denied the Motion as to both requests. Appellants also moved to clarify the measure of damages. The court granted the motion to clarify and modified its ruling, finding "that property owners at the time of the taking are entitled to compensation for `all damages, past, present, and prospective.'" J.A. 1755 (internal citation omitted). The court then held a trial on damages from April 18-21, 2011, and from April 25-28, 2011. Banks v. United States (Banks III), 102 Fed.Cl. 115, 120 (2011).
After the Court of Federal Claims conducted the damages trial, it found there was "a jurisdictional issue that arose in connection with its drafting of the trial opinion." Banks v. United States, 99 Fed.
Id.
Following the supplemental briefing, on December 22, 2011, the Court of Federal Claims again found it lacked jurisdiction. The court additionally presented findings "in the alternative" on the merits of the case, stating if "any appeal should disagree with the court's view of its jurisdiction, and to avoid the possibility ... of a repetitive trial, the court also presents here its findings from the trial." Banks III, 102 Fed. Cl. at 120.
Appellants timely appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012).
The principal issues on appeal are (1) whether this court's opinion in Banks II precluded the Court of Federal Claims from reconsidering when Appellants' claims accrued for the purposes of subject matter jurisdiction, and (2) whether Appellants knew or should have known that their claims accrued by 1952.
This court reviews legal holdings de novo and examines factual findings for clear error. Bell BCI Co. v. United States, 570 F.3d 1337, 1340 (Fed.Cir.2009). "[T]he interpretation by an appellate court of its own mandate is properly considered a question of law, reviewable de novo." Laitram Corp. v. NEC Corp., 115 F.3d 947, 950 (Fed.Cir.1997). A dismissal for lack of jurisdiction by the court below is also a legal conclusion reviewed de novo. Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed.Cir.2005).
The Tucker Act allows plaintiffs to sue the United States for claims founded upon the Constitution, Acts of Congress, agency regulations, contracts with the United States, "or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491. Title 28 U.S.C. § 2501 limits this allowance to a period of six years. The six-year limitation operates as a suspension of sovereign immunity,
The law-of-the-case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (internal quotation marks and citation omitted). The rule encourages both finality and efficiency in the judicial process by preventing relitigation of already-settled issues. Id. at 816, 108 S.Ct. 2166. The mandate rule, encompassed by the broader law-of-the-case doctrine, dictates that "an inferior court has no power or authority to deviate from the mandate issued by an appellate court." Briggs v. Pa. R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); see also Cent. Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed.Cir.1983) (explaining that the law-of-the-case doctrine was "judicially created to ensure judicial efficiency and to prevent the possibility of endless litigation"). Once a question has been considered and decided by an appellate court, the issue may not be reconsidered at any subsequent stage of the litigation, save on appeal. Cf. In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895) ("Whatever was before [the Supreme Court], and disposed of by its decree, is considered as finally settled.... If the circuit court mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled ... upon a new appeal.").
Under the mandate rule, a court below must adhere to a matter decided in a prior appeal unless one of three "exceptional circumstances" exist: (1) subsequent evidence presented at trial was substantially different from the original evidence; (2) controlling authority has since made a contrary and applicable decision of the law; or (3) the decision was clearly erroneous "and would work a manifest injustice." Gindes v. United States, 740 F.2d 947, 950 (Fed.Cir.1984) (internal quotation marks and citation omitted). This rule is limited to issues "actually decided, either explicitly or by necessary implication" in the previous litigation. Toro Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1335 (Fed.Cir. 2004).
Appellants' first jurisdictional argument is that the Court of Federal Claims violated this court's mandate and that none of the three exceptions gave it the power to do so. The Government counters that the Court of Federal Claims "correctly concluded that the issue here — whether Banks knew or should have known of the claims before the refurbishment and mitigation projects were undertaken in the 1950s and 1970s — was not considered or decided by this Court in Banks II." Appellee's Br. 30.
To determine whether this court's mandate in Banks II was violated, its scope must first be established. The Banks II court prefaced the analysis by stating its focus: "The issue before this court on appeal is whether the Court of Federal Claims erred in finding that the [P]laintiffs' claims fell outside the applicable statute
Banks II, 314 F.3d at 1310 (citation omitted).
On remand, the Court of Federal Claims again dismissed the case, finding Appellants' Complaints were untimely. It held its dismissal was not barred by the mandate rule, on the ground that this court's decision did not address "whether [P]laintiffs' claims accrued before the [G]overnment made its first promises of mitigation." Banks III, 102 Fed.Cl. at 150. Finding that "the jetties were impermeable to sand before they were encased in steel sheet piling," id. at 131, the Court of Federal Claims held the Appellants' claims accrued before 1952 and dismissed the case for want of jurisdiction. The Court of Federal Claims found that for Appellants' claims to have been timely filed, the erosion must have stabilized after 1952, six years before the 1958 Study, which Appellants argued created justifiable uncertainty about the permanence of the taking. Id. at 133-34.
The Government argues that Banks II never decided whether the claims accrued before 1952, because both this court and the Court of Federal Claims "accepted as true the allegations of the Complaints, including the allegation that the jetties caused no damage before 1950." Appellee's Br. 31-32. The Government therefore contends that the Court of Federal Claims did not violate the mandate rule when it considered that issue on remand.
The problem with the Government's position is that neither the Court of Federal Claims nor this court accepted as true all the allegations in Appellants' Complaint. When reviewing a motion to dismiss for lack of subject matter jurisdiction, a court accepts only uncontroverted factual allegations as true for purposes of the motion. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). "If a motion to dismiss for lack of subject matter jurisdiction, however, challenges the truth of the jurisdictional facts alleged in the complaint, the district court may consider relevant evidence in order to resolve the factual dispute." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); see also Engage Learning v. Salazar, 660 F.3d 1346, 1355 (Fed.Cir. 2011); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993). In such cases, the plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748 (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). Additionally, "[i]f the Rule 12(b)(1) motion [to dismiss] denies or controverts the pleader's allegations of jurisdiction ... the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Med. Ctr., 11 F.3d at 1583.
In Banks I, the Court of Federal Claims stated that "[b]ecause the parties were preparing for trial at the time [D]efendant filed its [M]otion to [D]ismiss, the evidentiary record is well-developed. The court has before it the anticipated trial exhibits prepared by the parties and filed in accordance with the pre-trial scheduling order."
Holding those findings were clearly erroneous and that Appellants' claims did not accrue until 2000, the Banks II court relied on the technical Reports, not solely on the Appellants' allegations in the Complaint. It is simply inaccurate to claim that the factual allegations of the Complaint were taken as true by either court.
Banks II did not "leave open" the issue of when Plaintiffs' claims accrued. The Banks II court held the Complaints were not barred by the six-year statute of limitations. Necessary and predicate to the holding was a finding that the mitigation efforts delayed claim accrual.
Because the Banks II mandate decided the accrual date, the Court of Federal Claims was permitted to revisit this issue only if one of the three exceptions to the mandate rule applied. The Court of Federal Claims did not find, and the Government did not argue, that the Banks II decision was clearly erroneous or that there was a change in controlling precedent. Thus, only the third exception — whether subsequent evidence presented at trial was substantially different from the original evidence — is relevant.
The Government contends that the "most persuasive evidence that the jetties had caused erosion of the Banks properties" was the 1958 Study, which was admitted in July 2007, six years and four years after Banks I and Banks II, respectively. Appellee's Br. 34 (citing Banks III, 102 Fed. Cl. at 134). Appellants respond that "the evidence is not new, and far from being substantially different, is merely cumulative of the jurisdictional evidence that was before this [c]ourt." Appellants' Br. 27.
When a party offers additional evidence that is consistent with previously-offered evidence, but is not new or different in any real sense, a court should decline the invitation to revisit its previous determination. See Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed.Cir. 2001) (noting that the district court stated, "[a]lthough Intergraph may have obtained more evidence related to the FTC's actions, the Federal Circuit was certainly aware of the actions"); see also United States v. Bartsh, 69 F.3d 864, 867 (8th Cir.1995) (finding that the Appellant presented "no new substantive evidence, but merely a recalculation of the same evidence that was offered at the sentencing hearing"). In the instant case, while the Court of Federal Claims may have examined the evidence more thoroughly in the bifurcated liability and damages trial, all of it was consistent with evidence that was before both the Court of Federal Claims on the Government's Motion to Dismiss and this court on appeal in 2003.
The sum of that evidence is that erosion has been occurring since at least 1903. The evidence was not only before the Court of Federal Claims in Banks I; the court referred to, and relied upon, it extensively. The same evidence was before this court in 2003, as evidenced by the fact that the basis for this court's opinion in Banks II was the 1996, 1997, and 1999 Reports. This court is not persuaded that any "new" evidence required reexamining jurisdiction that had already been decided by this court.
In evaluating the scope of the mandate, the actions of the Court of Federal Claims must not be inconsistent with the letter or spirit of the mandate. Engel Indus. Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed.Cir.1999). Indeed, "all issues within the scope of the appealed judgment are deemed incorporated within the mandate and thus are precluded from further adjudication." Id. at 1383. The broad mandate issued by this court found that Appellants' claims did not accrue until the 1996, 1997, and 1999 Reports. This decision necessarily decided that the claims did not accrue prior to 1952. The Court of Federal Claims' Banks III holding that the claims accrued before that time is therefore reversed.
The Court of Federal Claims further erred in its analysis of accrual suspension. The accrual of a claim against
The Court of Federal Claims found that Appellants' argument relating to accrual suspension based on the overruling of adverse precedent was waived because they did not raise it in their opening brief to that court. In the alternative, the court held that the accrual suspension rule was "inapplicable to [P]laintiffs' claims." Banks III, 102 Fed.Cl. at 144. On appeal, Appellants argue that accrual suspension should apply because they "should not reasonably have been expected to know that jetty-caused erosion was significantly damaging their properties until 1997." Appellants' Br. 23. The Government contends that Appellants "now raise[ ] a second accrual suspension argument that was not raised in the [Court of Federal Claims]" and that argument is waived. Appellee's Br. 40.
Appellants have not waived their accrual suspension arguments. The Court of Federal Claims cited Appellants' argument "that as late as 1997 it was not understood that the harbor jetties caused increased erosion in [P]laintiffs' zone. The implication of [P]laintiffs' argument is that their claims stabilized no earlier than 1997 because it was not understood at that time that the jetties were causing erosion in [P]laintiffs' zone." Banks III, 102 Fed.Cl. at 141. Though Banks did not use the term "accrual suspension" in making this argument, the substance is the same as that which it argues before this court. Accordingly, the argument is not waived.
The Court of Federal Claims held that "erosion caused by the jetties in [P]laintiffs' zone was a longstanding problem by 1952, beginning as early as 1903," id. at 138, and that the forty-nine-year passage of time and "well-documented" erosion would have made it "clear to a reasonable landowner ... that the [G]overnment had effected a permanent taking,"
When there is a gradual physical process, such as erosion or flooding, the "stabilization doctrine" delays claim accrual until the situation has "stabilized." See United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). Thus, the statute of limitations under the Tucker Act only begins to run when it "becomes clear that the gradual process set into motion by the [G]overnment has effected a permanent taking, not when the process has ceased or when the entire extent of the damage is determined." Boling, 220 F.3d at 1370-71.
In making the determination of permanence, a court considers "the uncertainties of the terrain, the difficulty in determining the location of the government's easement, and the irregular process of erosion." Id. at 1373. Claims are deemed to accrue once the damage has "substantially encroached the parcels at issue and the damages were reasonably foreseeable." Id.
The Government argues that even if Appellants inferred from the various Corps Reports that the jetties had not caused the specific damage to their properties, "[they] w[ere] on notice of the well-documented connection between the jetties and erosion along the shore." Appellee's Br. 46. Likewise, the Court of Federal Claims implies that Appellants knew or should have known that the jetties were causing erosion because of the "general pattern of erosion that followed the lengthening of the jetties in 1903." Banks III, 102 Fed. Cl. at 140.
Two factors complicate determining when Appellants knew or should have known of their alleged takings claims. First, the shorelines of Appellants' properties are subject to natural erosion and other natural fluctuations. As this court found in Banks II, "without human intervention, [erosion] occurs naturally at a rate of approximately one foot per year." 314 F.3d at 1306. Furthermore, Lake Michigan is subject to "[s]hort period fluctuations up to about 1.8 feet, caused by winds and differences in barometric pressures, [which] occur with annual frequency." J.A. 5939. Waves and storms also affect the shorelines: "Waves from both the northwest and southwest quadrants cause movement of beach material, but as evidenced by the much greater accumulation of beach material north of the St. Joseph Harbor structures, the predominant direction of littoral transport is southward." Id. The Government's own expert, Dr. Robert Nairn, a coastal engineer, testified that the slow process of erosion is "masked by far larger swings in the width of the beaches next to [P]laintiffs' properties caused by cross-shore sand transport, a cyclical process by which sand is moved offshore during times of high lake levels and returned to the shore during times of low lake levels." Banks III, 102 Fed.Cl. at 121.
That the Plaintiffs were aware of some erosion is not sufficient for the claim to accrue. See Nw. La. Fish & Game Pres. Comm'n v. United States, 446 F.3d 1285, 1291 (Fed.Cir.2006) (explaining because some growth of hydrilla is normal, the damage to Plaintiffs was not known until there was uncontrolled overgrowth and the Corps issued a final refusal to
As found by this court in Banks II, Appellants could not reasonably have known the damage was "permanent" until the Corps issued its 1996, 1997, and 1999 Reports showing that its mitigation efforts could not reverse the damage caused by its jetties. Banks II, 314 F.3d at 1310. It is erroneous to hold Plaintiffs responsible for knowledge that the Government itself had disclaimed prior to the 1997 Report. Cf. L.S.S. Leasing Corp. v. United States, 695 F.2d 1359, 1366 (Fed.Cir.1982) (by taking upon itself the obligation to report overtime usage, the Government relieved the lessor of monitoring such use). The Government itself explained in the 1958 Study that the Corps believed that the erosion was not permanent and could be mitigated and reversed. Banks III, 102 Fed.Cl. at 133. Moreover, in 1973, the Government believed that the jetty-induced erosion had not reached the majority of Appellants' properties.
Without a basis for imputing knowledge of the effect of the jetty-caused erosion on Appellants' properties, it was unreasonable to find that the Appellants were aware of their claim regarding the permanency of the taking before the 1990s Reports.
In light of the foregoing, and because "Dickinson discouraged a strict application of accrual principles in unique cases involving Fifth Amendment takings by continuous physical processes," Applegate, 25 F.3d at 1582 (citing Dickinson, 331 U.S. at 749, 67 S.Ct. 1382), the Court of Federal Claims' finding that Appellants knew or should have known of the damage prior to 1952 is clearly erroneous.
In Banks III, the Court of Federal Claims stated:
102 Fed.Cl. at 120. In the absence of anything appealable, this court lacks appellate jurisdiction. See 28 U.S.C. § 1295(a)(3). To be final and appealable, see Fed.R.Civ.P. 54, a decision must end the litigation on the merits, Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945), and the judge must "clearly declare[] h[er] intention in this respect," United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Here, contrarily, the Court of Federal Claims reasoned that, "[b]ecause [the] references [to when certain shore protection measures were undertaken] are scattered across several
The Court of Federal Claims' alternative merits discussion is not a final and appealable decision over which this court has jurisdiction. On remand, the Court of Federal Claims may reconsider any merits rulings that were rendered at a time it mistakenly believed it lacked jurisdiction. In light of the Court of Federal Claims' clearly erroneous fact finding on claim accrual, it is appropriate that there be no law-of-the-case or comparable obstacle preventing it from reconsidering its earlier, related findings on the merits. This court's prior mandate — that the claims did not accrue until the 1999 Report — is still law-of-the-case, binding below.
The Court of Federal Claims' dismissal for lack of jurisdiction is reversed and the case is remanded to the Court of Federal Claims for further proceedings.
Banks I, 49 Fed.Cl. at 817 (citation omitted).
